The Owners Of Ceresa River Apartments Strata Plan 55597 and Haines

[2015] WASAT 72

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   THE OWNERS OF CERESA RIVER APARTMENTS STRATA PLAN 55597 and HAINES [2015] WASAT 72

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   16 JUNE 2015

DELIVERED          :   24 JUNE 2015

FILE NO/S:   CC 186 of 2015

BETWEEN:   THE OWNERS OF CERESA RIVER APARTMENTS STRATA PLAN 55597

Applicant

AND

TERRENCE ROBERT HAINES
First Respondent

KERRY ANN HAINES
Second Respondent

JAMES ANTHONY BYRNE
Third Respondent

VERONICA BYRNE
Fourth Respondent

DENNIS LIGHTFOOT
Fifth Respondent

DEIDRE MARY LIGHTFOOT
Sixth Respondent

Catchwords:

Strata title ­ Principles of interpretation of by­laws in strata scheme ­ Meaning of 'residential lot', 'residence', 'occupancy rights' and 'residential tenants' ­ Whether the renting out of a residential lot for purposes of short-stay accommodation is consistent within the meaning of 'residential', 'residence', 'occupancy rights' and 'residential tenants'

Legislation:

City of Belmont Local Planning Scheme No 15, Sch 1
Residential Tenancies Act 1987 (WA), s 5(2)(e)
Strata Titles Act 1985 (WA), s 42, s 42(1), s 42(2), s 81(10)
State Administrative Tribunal Act 2004 (WA), s 95(1)

Result:

The application is successful
The respondents shall not utilise their respective lots in a manner that is inconsistent with and unauthorised by By­law 16 of strata scheme 55597
These orders shall take effect as from 1 August 2015

Summary of Tribunal's decision:

The applicant sought an order for the respondents to cease renting their lots for purposes of short­stay accommodation.  The strata scheme's By­law 16 provides that a lot must be used as a 'residence' by the proprietor of the lot, or that 'occupancy rights' may only be granted to 'residential tenants'.  The question is whether short­stay accommodation falls within this scope of use.

The applicant said that the lots had to be used for residential purposes and that, according to the ordinary meaning of the word 'residence', short­stay accommodation where persons can book a lot for only a night is not of sufficient permanency to be an authorised use under By­law 16.

The respondents said that the use of the words 'residence' and 'residential tenants' do not exclude the lots being used for purposes of short­stay accommodation.  The respondents said the relevant by­law had to be interpreted within the context of the Strata Titles Act 1985 (WA), the relevant by­laws and the ordinary meaning of the word. If that is done, the respondents say, it must be found that short­stay accommodation, regardless of the duration of the stay, is a consistent use under the relevant by­law because it is a form of 'residence'.

The Tribunal found that since the Strata Titles Act 1985 and By­law 16 of the strata scheme do not define 'residence', 'occupancy rights' or 'residential tenants', the ordinary meaning attached to the words within the context of the relevant by­law should be ascertained.  The Tribunal concluded that the lots may only be used for a form of occupancy that is consistent with an intention of permanency, long­term accommodation, or place of abode.  The making available of lots for short­stay accommodation where an occupant has no intention to make the lot his or her place of residence is therefore not consistent with By­law 16 and is not allowed in this scheme.

Orders were made for the respondents to cease the breaches of the relevant by­law.  The orders were made to take effect on 1 August 2015.

Category:    A

Representation:

Counsel:

Applicant:     Mr M Atkinson

First Respondent           :     Mr V Pelligra

Second Respondent      :     Mr V Pelligra

Third Respondent          :     Mr V Pelligra

Fourth Respondent        :     Mr V Pelligra

Fifth Respondent           :     N/A

Sixth Respondent          :     N/A

Solicitors:

Applicant:     Atkinson Legal

First Respondent           :     Slater and Gordon

Second Respondent      :     Slater and Gordon

Third Respondent          :     Slater and Gordon

Fourth Respondent        :     Slater and Gordon

Fifth Respondent           :     N/A

Sixth Respondent          :     N/A

Case(s) referred to in decision(s):

Derring Lane Pty Ltd v Port Phillip Council (No.2) [1999] VSC 269

Federal Commissioner of Taxation v Miller (1946) 73 CLR 93; 3 AITR 333

Hope and City of Joondalup [2007] WASAT 8

Mackie v Henderson [2011] WASC 197

Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307

Owners of Pearl Beach Survey­Strata Plan 49019 and Heyns [2011] WASAT 66

The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101

Urdd Gobiath Cymru v Commissioner of Customs and Excise [1997] V & DR 273

REASONS FOR DECISION OF THE TRIBUNAL: 

Issue

1. The issue is whether the lots of the respondents may be used for purposes of short­stay accommodation in light of the provisions of Sch 1 By­law 16.1 and Sch 1 By­law 16.2.1 of the City of Belmont Local Planning Scheme No 15 (LPS 15), which require that lots may only be used as a 'residence' by the proprietor, and otherwise for 'occupancy rights' in respect to 'residential tenants'.

Background

1. The facts of the dispute are not contested and can be summarised as follows.

2. Strata Scheme 55597 (strata scheme) comprises 113 residential apartment dwellings and was created on 14 July 2008.  All lots within the strata scheme are residential lots.  By­law 16 formed part of the management statement that was registered at the same time as the strata plan.

3. The strata scheme is situated within a Mixed Use zone of the City of Belmont (City), which means that within the zone are buildings that may contain commercial and other non­residential uses in conjunction with residential dwellings in a multiple dwelling (tower) configuration.

4. LPS 15 defines the different type of uses of a lot.  The City has changed the use of Lots 17, 14 and 7 (lots) of the respective respondents from 'Multiple Dwelling' to 'Serviced Apartment'.  A 'serviced apartment' is defined in Sch 1 of LPS 15 to mean 'an independent living residential unit providing for short stay accommodation'.  'Short stay accommodation' is also defined in Sch 1 of LPS 15 as accommodation 'where occupation by any person is limited to a maximum of three months in any 12 month period'.

5. The change of use of the respective lots took effect on the following dates:

   •Lot 17 on 8 July 2009;

   •Lot 14 on 23 May 2013; and

   •Lot 7 on 4 July 2013.

   In the case of Lots 14 and 7, the planning approval carries a footnote stating that the approval did not negate the need to obtain other relevant approvals.

6. All three lots are being used for a purpose that falls within the definition of 'short­stay' as per the planning approval of the City.  The bundle of documents dated 6 February 2015, provided to the Tribunal by the applicant, contains various examples of advertisements that have been placed by the respective respondents to attract prospective clients to their lots for purposes of short­stay accommodation.  According to the legal representatives of the parties, similar short­stay arrangements are likely to be found in several strata schemes in the metropolitan area.

7. The applicant and the respondents have been at loggerheads for some time about the letting of the lots for short­stay purposes.  The applicant says short­stay accommodation is not a permitted use under By­law 16, while the respondents say it is a permitted use.  A by­law by which the applicant sought to regulate short­stay accommodation, in a separate proceeding, has been found to be non­compliant with the Strata Titles Act 1985 (WA) (ST Act).

Statutory framework

1. The by­law the subject to the dispute is By­law 16, which reads as follows:

   16.Use of Premises

   16.1Subject to the Schedule 1 bylaw 16 a proprietor of a residential lot may only use his lot as a residence.

   16.2Notwithstanding bylaw 16.1 a proprietor of a residential lot may:

   16.2.1grant occupancy rights in respect of his lot to residential tenants;

   16.2.2conduct business from his lot so long as:

   16.2.2.1the proprietor does not invite customers of the business to visit the lot for the purpose of conducting the business;

   16.2.2.2the conduct of the business from the lot does not breach any local authority bylaw or regulation;

   16.2.2.3the conduct of the business does not cause any inconvenience to the proprietors of other lots;

   16.2.2.4the business does not involve the manufacture storage or vending of goods.

   16.3Notwithstanding bylaw 16.1 the original proprietor of the land may use any lot owned by the original proprietor for the purposes of display to prospective purchasers of that or other lots within the scheme.

   16.4If a proprietor grants occupancy rights in respect of his lot he shall:

   16.4.1promptly provide the council with the full name of each occupier;

   16.4.2give each occupier a copy of the bylaws and the rules (if any) at the commencement of occupation; and

   16.4.3procure that the occupancy agreement contains a provision to the effect that the occupier will comply with the bylaws and the rules and that any breach thereof will constitute a breach of the occupancy agreement which will entitle the proprietor to terminate the occupancy agreement with the occupier.

Contentions

1. The applicant and the respondents (first to fourth) were legally represented.  The fifth and sixth respondents, Mr Dennis Lightfoot and Mrs Deidre Lightfoot, were not legally represented, but Mrs Lightfoot made a written submission and she attended the hearing, although she elected not to take an active part in the proceeding.  Since the facts giving rise to the dispute were not contested, no witnesses were called at the hearing.  Counsel for the respective parties made written and oral submissions and the Tribunal put questions to counsel.

2. Mr Mark Atkinson, the legal representative of the applicant, contends, in summary, as follows:

   •By­law 16 formed part of the management statement that took effect when the strata scheme was registered.  The respondents either knew of the limitation imposed by By­law 16, or ought to have known.  It is no defence for the respondents to claim that they were not aware of the content or implications of By­law 16.

   •The applicant has an obligation to enforce the by­laws of the strata scheme, and the amenity of the strata scheme requires that the residential character of the strata scheme is protected.  Any change of use to allow short­term stays would have a major impact on all proprietors and other residents of the strata scheme.  The change of use of the lots by the City to 'serviced apartments' already has potentially far reaching implications to the applicant, for example, insurance cover may have to be reviewed since short­stay occupants come and go with higher frequency than other residents, and safety and fire­evacuation arrangements and signs may have to be erected because short­stay occupants would otherwise not be aware of the strata scheme's emergency plans, and information about placing of fire extinguishers and emergency exits would have to be upgraded.

   •The words 'residence' and 'residential tenant' are not defined by the ST Act or the strata scheme's by-laws.  In the absence of a statutory definition, the Tribunal must give effect to the words by ascertaining the ordinary meaning that attaches thereto within the context of the ST Act and the by­laws.  The ordinary meaning of 'residence', 'residential' and 'residential tenancy' entails a sense of permanence, a place of permanent residence, accommodation for a considerable period of time, a place of abode, a place that the occupant intends to call 'home', or to have a fixed address.  The words 'occupancy rights' do not expand the meaning of 'residence' to include a wider category of occupants such as short­stay occupants.  The intention of the occupant is relevant; namely, does he/she intend to use a lot as their permanent home, address or abode, or do they intend to reside for a limited period without any intention of permanency, or for a considerable period of time?

   •Short­stay occupants of the lots do not exhibit the intention to remain in a lot for a substantial period of time, or to make it their place of residence or permanent occupancy or fixed address.  Mr Atkinson says that the way in which these terms have been interpreted in other statutes have limited application to this proceeding because it is within the context of a specific statute that the meaning of word 'residence' must be found.  Mr Atkinson says, in essence, that By­law 16.1 requires that the proprietor of a lot must use the lot for the purpose of a 'residence', and By­law 16.2 provides that the proprietor of a lot may rent out the lot to another person provided that such a person resides in the lot as a 'residential tenant'.

   •Mr Atkinson concludes that the meaning of the words 'residence', 'residential' and 'residential tenant' within By­law 16 clearly imputes a degree of permanency that does not apply to short­stay occupants and he therefore seeks orders that the practice of the respondents to make the lots available for short­stay accommodation, must cease.

3. Mr Pelligra, the legal representative of the first to fourth respondents, contends, in summary, as follows:

   •By­law 16 does not preclude the lots being used for short­stay accommodation.  The word 'residence' refers to the use the lots are put to and not the duration of the stay.  'Residence' on a short­stay basis complies with the requirements of By­law 16.2, and it is consistent with the zoning of the strata scheme and the change of use that has been approved by the City.

   •Short­stay occupiers use the lots for the intended purpose namely, to stay for one or more nights for purposes of accommodation.  Short­stay occupiers, while they reside in the lots are, 'residential tenants' with 'occupancy rights'.  The word 'residence' does not suggest a term of occupancy but rather the type of use.  Utilising a lot for a 'residence' therefore contrasts with using a lot for other purposes such as 'commercial' or 'industrial'.  Residing for a short­stay in a lot is therefore entirely consistent with the permitted use of the lots.  If the by­laws had intended that short stay accommodation should be prohibited, words to that effect could have been used.

   •Mr Pelligra agrees that in the absence of statutory definitional clarity, By­law 16 should be interpreted objectively by the meaning the words would convey to a reasonable person within the context of the ST Act and the by­laws.  The words used in By­law 16 were specifically aimed at a wider category of persons than long­term, permanent residents, and unless the by­law is amended to preclude short­stay accommodation, short­stay rentals fall within the authorised use of 'residential tenants'.

   •Mr Pelligra concludes that the meaning of the words 'occupancy rights' and 'residential tenant' within By­law 16 clearly allows a wide range of permitted occupancy, which includes short­stay residency.  The use of the lots for short­stay accommodation is therefore consistent with By­law 16 and the application should be dismissed.

Consideration

1. The facts giving rise to this dispute are not in dispute.

2. The strata scheme comprises 113 residential high­rise apartments.  The respondents rent their respective lots out for purposes of short­stay accommodation.  The lots can be rented on a day­to­day basis or for longer periods, but according to LPS 15, short­stay accommodation by any individual client may not exceed three months in any 12 month period.

3. The applicant says the use to which the respondents put their respective lots is not permitted under By­law 16 of the strata scheme, while the respondents say it is a permitted use.

4. There are, in essence, three discrete issues to be addressed in order to make a final determination.  Those issues are:

   a)Is it relevant that some or all of the respondents were not aware of By­law 16 or the possible restrictions imposed by By­law 16 when they acquired the respective lots?

   b)Does the use of the word 'residence' refer to the 'type' of use a lot is put to, or does it refer to the 'intent' or duration with which a lot is occupied?

   c)What do the words 'residence', 'occupancy rights' and 'residential tenants' impute and how does this impact on short­stay accommodation?

   The Tribunal will respond to each of these questions separately.

Is it relevant that some or all of the respondents were not aware of By­law 16 or the possible restrictions imposed by By­law 16 when they acquired the respective lots?

1. The Tribunal's answer to this question is in the negative.

2. It is not contested that By­law 16 took effect before the respondents acquired their lots.  Although mention was made in earlier correspondence between the parties that some of the respondents may not have been aware of By­law 16 or the potential restrictions it imposes, Mr Pelligra did not pursue the argument in his submissions and the Tribunal, in any case, rejects such contention.  A proprietor is presumed to familiarise themselves with the by­laws of a strata scheme prior to acquiring a lot.  That is, after all, why by­laws are registered and form part of a public record.  If there is any question about the meaning or implications of a by­law, the prospective owner has the opportunity to seek legal or other advice.  As has been observed by the Supreme Court, 'it can hardly ever be said that [an original] by­law creates an injustice' : Mackie v Henderson [2011] WASC 197 at [41].

3. The level or scope of knowledge of the respondents in regard to the existence or meaning or implication of By­law 16 is not a relevant consideration for the purposes of determining this dispute.

Does the use of the word 'residence' refer to the 'type' of use a lot is put to, or does it refer to the 'intent' with which a lot is occupied?

1. A strong argument is made that the word 'residential' is used principally to distinguish between different types of uses of the lots; for example, residential, commercial or industrial.  In terms of this argument, 'residential' denotes a type of use or classification or zoning according to which a lot must be used for purposes of a form of habitation.  In this strata scheme, the argument is that a lot must be used for habitable purposes regardless of the length of stay or the intent of the occupant.  The use of respective lots of the respondents are therefore consistent with By­law 16, since the lots are used for purposes of habitation, the set up and furnishing of the lots are consistent with the lots being a residence, and the intent of an occupant of a lot about the duration of stay is not a relevant consideration.  The use of the lots by the respondents is therefore consistent with By­law 16.

2. The Tribunal does not accept this contention.

3. The use of the word 'residence' in By­law 16 does not suggest that the applicant has the power to change the use of lots; for example, to commercial or industrial purposes. The strata company may make by­laws pursuant to s 42 of the ST Act, but those by­laws must fall within the framework set by s 42(1) of the Act. The function of zoning or classification of use of lots rests with the City, and that explains, following a request by the respective respondents, why the City had approved a change of use of the respective lots to 'serviced apartment'. The use of the word 'residence' or 'residential tenant' therefore does not, in the assessment of the Tribunal, include any type of habitation.

4. The use of the word 'residence' and 'residential tenant' must be construed within the context of the powers and functions of the applicant.  The authorised use of all the lots in the scheme is expressed by By­law 16.1, which determines that a proprietor of a lot 'may only use his lot as a residence' and a proprietor may also 'grant occupancy rights in respect of his lot for residential tenants' (By­law 16.2).  By­law 16.2.2 sets out other business that may be conducted from the lot, subject to the conditions set out in the by­law, and By­law 16.4 sets out responsibilities of the proprietor in regard to 'residential tenants'.

1. The use to which lots within the scheme can be put is therefore subject to By­law 16; namely, to be occupied as a 'residence' for 'occupancy' by 'residential tenants', and for the 'conduct of business' subject to the restrictions set out in By­law 16.2.2.

2. The Tribunal therefore finds that the use of the words 'residence' and 'residential tenants' in By­law 16 refers to the intent with which a lot is occupied, rather than to distinguish between any form of residential and other forms of usage such as industrial or commercial.  The Tribunal must consider the meaning of 'residence' and 'residential tenancy' to ascertain whether the use of the lots for short­stay accommodation is consistent with By­law 16.

What do the words 'residence', 'occupancy rights' and 'residential tenants' impute?

1. It has been pointed out that neither the ST Act nor the Sch 1 by­laws of the strata scheme define what is meant by 'residence', 'occupancy rights' or 'residential tenants'.

2. The principles according to which a by­law of a strata scheme should be interpreted were set out in the matter of Owners of Pearl Beach Survey­Strata Plan 49019 and Heyns [2011] WASAT 66 at [43]. Mr Pelligra relied on these guidelines and Mr Atkinson indicated that he agrees, in general, with those principles:

   The Tribunal will use the following guiding principles to assist it in its construction of By­laws 16(1) and 16(3):

   (a)The foremost principle is that s6 of the ST Act sets out the requirements for a restriction of use to be registered against a strata/survey strata plan.  Such a restriction of use may be amended by way of a resolution without dissent (s 6(1a) and s 6(3) of the ST Act), provided that such a resolution refers to the strata plan showing the area of space affected.  Where a registered strata/survey strata plan restricts the use of a lot, the lot may not be used in any manner that contravenes the restriction (s 6(2) of the ST Act) …  If the by-law is ambiguous when reading it in the context of a s 6 Use Restriction, then an interpretation should be favoured which gives the by­law lawful effect.  This principle applies equally the interpretation of contracts: see Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279 (by Mason P, a dissenting judgment - but that does not affect the principle stated) referred to in K Lewison, The Interpretation of Contracts (3rd ed, 2004) at para 7.10, and in relation to statutory interpretation: see General Practitioners' Society in Australia v Commonwealth of Australia (1980) 145 CLR 532 at 562, referred to in DJ Gifford, Statutory Interpretation (1st ed, 1990) at page 69.

   (b)The meaning of By-laws 16(1) and (3) should be gained from their context and language.  The by­laws should therefore be interpreted so as to be given their grammatical and ordinary meaning (Codelfa Construction Pty Ltd v State Land Rail Authority (NSW) (1982) 149 CLR 337), unless an interpretation leads to some absurdity, repugnance, ambiguity or inconsistency with other by­laws or the Use Restriction (Clark v The Owners of Rosneath Farm Strata Plan 35452 and Ors [2007] WASAT 85, at [47])[.]

   (c)The By­laws 16(1) and (3) and the Use Restriction must not be considered in isolation from each other or from the other by­laws in the Strata Scheme.  The construction of By­laws 16(1) and (3) the Use Restriction takes place in an holistic, integrated manner against the backdrop of all the by­laws of the Strata Scheme so as to allow the respective By­laws to have full meaning and practical effect.  The Strata Plan and Use Restriction noted thereon, forms an integral part of the Scheme and the By­laws that regulate it.

   (d)By­laws 16(1) and (3) and the Use Restriction should be interpreted objectively by what meaning they would convey to a reasonable person. Members of the public rely on the registered by­laws and use restrictions on the strata plan, if any, to gain insight into the rights and responsibilities of proprietors, residents and visitors in a strata scheme. Section 68 of the Transfer of Land Act 1893 (WA) provides that a strata title is taken subject to any encumbrances registered against it on the certificate of title. The registered by­laws, including the strata plan and s 6 ST Act use restriction thereon, are lawful encumbrances registered against the title and any proprietor is therefore deemed to have knowledge thereof.

   (e)Caution should be exercised before taking into account extrinsic material or surrounding circumstances when constructing By­laws 16(1) and (3) and the Use Restriction since members of the public may not have access to such extrinsic material to enable them to discern the proper meaning of the By-laws.  The intent of Parliament to require registration of a by­law and the benefit of the certainty and clarity that registration of by­laws bring, may be eroded if the Tribunal too readily relies on extrinsic material for the interpretation of a by­law or a use restriction on a strata plan.  The Tribunal may, however, give consideration to extrinsic material if it is necessary to clarify the meaning and intent of a by­law or use restriction in circumstances where the by­laws or use restrictions are ambiguous, vague, confusing or contradictory.  It was accepted in Rowell v Clark & Anor [2006] WASC 159 (Tempelman J at [39] and [40]) that the Tribunal may have regard to extrinsic evidence when interpreting an ambiguous by­law.

   [f]Although the Tribunal is not a court and its procedures are more informal than what is expected in court proceedings, it must adhere to general accepted principles when constructing statutes and contracts, for example, evidence should not be permitted which contradicts or varies the written agreement or in this case, a by­law or use restriction (Rosneath at [42]).

   [g]The statutory context within which the Tribunal operates provides that the Tribunal is not bound by the rules of evidence (s 32(2) SAT Act) but that it must adhere to the rules of natural justice (s 32(1) SAT Act).  The Tribunal must determine the matter on the substantial merits without regard to technicalities and legal forms (s 32(2) SAT Act); and the Tribunal may inform itself on any matter as it sees it (s 32(4) SAT Act).

3. Both parties referred the Tribunal to authorities that support their respective propositions.  Unfortunately, none of those authorities are directly on point as far as this dispute pursuant to the ST Act is concerned.  In essence, the parties support the general principles established by authoritie namely, that:

   a)words must be interpreted within the context of the relevant statute and other by­laws;

   b)words must be interpreted in accordance with the meaning that would be gleaned by an objective person; and

   c)words should not be interpreted in a manner that gives rise to absurdity, repugnance, ambiguity or inconsistency with other parts of the relevant statute or by­laws.

4. Although the rules of interpretation allow, in certain circumstances, for parliamentary debates to be considered, neither of the parties relied on such debates and the Tribunal could also not, in its own research, find any reference in the second reading speeches of the ST Act that would assist in resolving this dispute.

5. There are two main sources that may provide guidance as to the meaning of the words 'residence' and 'residential tenant'; namely, decisions of other courts (albeit not pursuant to the ST Act) and dictionaries.

6. The respondents refer to the matter of Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307 (Marana Holdings) in which the court considered the meaning of 'residence'. The court made extensive references to dictionaries in which the word 'residence' is defined. The court summarises the common denominator between the different definitional approaches as follows, at [26]:

   Clearly, both 'reside' and 'residence' have the connotation of permanent, or at least long­term commitment to dwelling in a particular place[.]

7. The Court in Marana Holdings then considered various English and Australian authorities where content had to be given to the word 'residence'.  The respondents rely in particular on the court's reference to the English case of Urdd Gobiath Cymru v Commissioner of Customs and Excise [1997] V & DR 273 (Urdd Gobiath Cymru) in which the English court observed that although 'a residence' implies a building with a 'significant degree of permanence of occupation', the word 'loses that clear meaning when used as an adjective'.  In the English case of Urdd Gobiath Cymru the court concluded that 'in ordinary English "residential accommodation" merely signifies lodging, sleeping or overnight accommodation.  It does not suggest the need for such accommodation to be of any fixed or minimum period'.

8. The court in Marana Holdings did not endorse this interpretation. In fact, the court specifically distinguished the use of the words 'residential accommodation' in Australia to the use of the words under English law by saying the following, at [51]:

   It may be that the expression 'residential accommodation' is sometimes used to describe short­term accommodation in an hotel or a motel.  We are not sure that any such usage is as common in Australia as the Court of Appeal in Owen v Elliott [(1990) 1 CH 786] considered it to be in England.  We would have thought that such accommodation is more often described as 'temporary accommodation', 'holiday accommodation' or perhaps 'hotel accommodation' or 'motel accommodation'.

9. The reliance of the respondents on the Marana Holdings decision as being in support of its contention-namely, that 'residence' and 'residential accommodation' includes short­stay accommodation without any intention to long­term residence or permanency or making it a place of abode is not accepted by the Tribunal.

10. An overview of D Hay (ed), Words and Phrases Legally Defined (4^th ed, 2007) (Words and Phrases) and dictionaries shows that the word 'residence' consistently has common denominators of permanency, long­term, place of abode and place of address.  These words all signify an intention to reside for an extended period of time at a specific location which, albeit not necessarily permanent, makes the place a home, a place with a fixed address or a long­term place of accommodation.  In essence, the word 'residential' does not have a fixed meaning as far as duration of time is concerned, but it has a consistent meaning of intent to stay for an extended period of time.

11. It is therefore feasible that a person, after one day at a location, may be regarded as having made the place his or her 'residence' because of their intent to stay, while another person with no intent to remain permanently or for the long­term, even after multiple days or weeks may not be regarded as a 'resident' for the purposes of By­law 16.

12. This interpretation of the Tribunal is consistent with definitional approaches found in dictionaries and in cases.  For example:

    •Words and Phrases, at 75, refers to 'reside' and 'residence' as a person's 'home'.  It is observed that a 'short­stay visitor is not resident' and 'merely sleeping on the premises is not conclusive of residence'.  The question of permanence is a question of fact and degree.  It refers to Australian case law where to 'reside' has been held to mean 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place' : Federal Commissioner of Taxation v Miller (1946) 73 CLR 93; 3 AITR 333 at [99]-[100] 337

    •The Macquarie Concise Dictionary (3rd ed, 2004), at 1023, refers to 'reside' as a place to dwell permanently or for a considerable period of time or to have one's abode; 'resident' as someone who resides in a place; and 'residential' in the case of an hotel as catering for guests who stay permanently or for extended periods.

    •The Australian Oxford Dictionary (2nd ed, 2004), at 1096, refers to 'residence' as a place where a person resides or abides; 'reside' as a person's home or where a person dwells permanently; and 'resident' as a permanent inhabitant, albeit that, in the context of a stay in a hotel, a person can also be regarded as a resident.

    •In Derring Lane Pty Ltd v Port Phillip Council (No.2) [1999] VSC 269, (Derring) the Court referred with approval to the meaning of 'reside' being for a considerable period of time or a place where one establishes one's abode.  The Court emphasised that in the context of the relevant legislation, 'residence' entails two elements, namely physical presence in a place and the intention to treat the place as a home for a considerable period of time albeit not necessarily forever.

    •Within the context of planning disputes in Western Australia, the approach in Derring has been adopted for residential to mean some form of permanence for a considerable period : The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 at [23]. The challenge to establish with any accuracy, the number of days that are required for a stay to become of a residential nature is reflected in the following observation in Hope and City of Joondalup [2007] WASAT 8, at [30]: 'although it is debatable whether occupation of a property under a three month lease involves human habitation on a permanent basis, it is plain that occupation for a period between seven and 60 days does not involve human habitation on a permanent basis[.]'.

    The decisions referred to above and the dictionary meanings of the word 'residence' have the following in common:

    •it is not a term of art with a consistent meaning in all possible circumstances;

    •the meaning of the term must be ascertained within the context of the relevant statute in which it appears;

    •whether a place is the residence of a person is a question of fact and degree; and

    •in general, the meaning that attaches to the word is closely associated with: an intention of permanency; long­term; place of abode; place of address; home for a considerable period.

13. The Tribunal is of the view that the use of the words 'residence' and 'residential tenants' in By­law 16 excludes the use of the lots in the strata scheme for purposes of short­stay accommodation.  This finding is based on the following reasons:

    1)In the absence of a definition of the terms in the by­laws, the ordinary meaning that would be given to the words by a reasonable person should be ascertained.  As shown above, the words entail a degree of permanence and intent to reside for a substantial period of time that is not consistent with short­stay accommodation.

    2)Although the meaning of the words 'residence' and 'residential' must be ascertained within the context of the relevant by­laws of this strata scheme, the Tribunal notes that the meaning that other courts and tribunals have adopted in regard to the words, albeit within the context of other legislation, consistently refers to the intent of a person to reside permanently or for a substantial period of time, to call the place home, or to have the place as their fixed address.  None of these intentions apply to short­stay residents or occupiers.

    3)Although the word 'resident' can for certain purposes (for example, a guest in a hotel) be of a temporary nature within the context of By­law 16, the word must be read with the words 'residence' and 'residential tenants'.  The word 'tenant' is not generally associated with short­stay accommodation.  Generally speaking, 'tenant' refers to a person who is given a 'legal right of exclusive possession of the land for a term or from year to year or for a life or lives' (Words and Phrases, at 282).  The Tribunal does not accept the proposition by Mr Pelligra that the word 'tenant' should be read in isolation from the word 'residential'.  'Residential tenant' should be interpreted as a phrase that reflects the principles set out above, namely a person who makes a lot his or her 'residence' pursuant to an arrangement with the proprietor, to whom the by­laws are given, and against whom action can be taken if the by­laws are breached.

    4)By-law 16 is entirely consistent if the interpretation as proposed by the Tribunal is adopted.  Pursuant to By­law 16.1, the proprietor of a lot may only use the lot for purposes of residence, meaning a form of permanency consistent with the indicia set out above.  By­law 16.2 authorises the proprietor to enter into a lease to make the lot available to a 'residential tenant', meaning a person who exhibits the intention to make it: a place of abode; long­term; home;a place of permanency, etc.  By­law 164 sets out the responsibilities of the proprietor in regard to a residential tenant so as to ensure that by­laws are complied with.

    5)The interpretation is consistent with By­law 16.4, which envisages that the tenancy of a 'residential tenant' who does not comply with the scheme's by­laws, can be terminated.  It would be impractical to employ By­law 16.4 with short­stay visitors since by­laws are often complex, it may take time to resolve disputes, and tenancy agreements cannot be summarily terminated without due process.

    6)The words 'occupancy rights' must be interpreted within the context of 'residence' and 'residential tenants'.  'Occupancy rights' with reference to a 'residential tenant' means little more than the right of a person to reside or take up a tenancy or utilise accommodation.  The emphasis, for purposes of this proceeding is on the rights being exercised by 'residential tenants' and those rights are linked to the intention to stay long­term, to make the lot home, or to use it as an abode and all rights associated therewith.

    7)The Tribunal accepts that nothing in By­law 16 explicitly prohibits short­stay accommodation, but the converse is the case, the emphasis on accommodation only being for purposes of 'residence' and for occupancy rights of 'residential tenants' has the effect of excluding short­stay accommodation.

    8)The reference by the respondents to a now revoked by­law is not relevant since it is not operative.

    9)The reference by the respondents to the relevance of the Residential Tenancies Act 1987 (WA) (RT Act) is rejected, since the provisions of the ST Act and the by­laws must be interpreted in accordance with the principles established above; the RT Act does not define 'residence' or 'residential'; and s 5(2)(e) of the RT Act specifically excludes from the definition of 'residence' or 'residential' under the RT Act any accommodation occupied for purposes of a holiday. This seems to reinforce the conclusion of the Tribunal, namely, that short­stay accommodation is not regarded as 'residential'.

    In short, there is a thread that runs through the strata scheme that gives meaning and content to the words 'residence', 'occupancy rights' and 'residential tenant'.  The thread is that:

    a)the strata scheme is described as comprising of 'residential lots';

    b)a proprietor of a lot must use the lot as a 'residence' or may rent it out to 'residential tenants';

    c)the lots cannot be rented for short­stay purposes without the City changing the use of a lot to 'serviced apartment';

    d)each 'residential tenant' must receive a copy of the by­laws of the strata scheme so as to understand his or her rights and responsibilities within the scheme; and

    e)the only ordinary, objective meaning that can reasonably be given to the words 'residence' and 'residential tenant' is that of an occupant who demonstrates the intention to reside at the lot for an extended or substantial period of time; who makes the lot his address; who intends to call the lot 'home' and to make the lot his abode.

    A short-stay occupant demonstrates none of these intentions.

14. In conclusion, for the reasons set out above, the use of the lots the subject of this proceeding for purposes of short­stay accommodation is not authorised under By­law 16.  Orders are made for the respondents to cease allowing the respective lots to be utilised for an unauthorised purpose.  The orders will take effect on 1 August 2015, thereby allowing the respondents to conclude their short­stay advertising and other arrangements.

1. The applicant sought orders for the Tribunal to declare that s 95(1) of the SAT Act applies so as to establish a basis for further action, should the respondents fail to comply with the orders of the Tribunal. The Tribunal is not of the view that such a declaration is justified, since the respondents have put up an arguable case and have not indicated through their behaviour that they might refuse to comply with orders of the Tribunal.

2. The applicant also sought an order, pursuant to s 81(10) of the ST Act, that these orders will not cease to have effect or force upon the expiration of the period of two years that next succeeds the making of the order. This is a reasonable request to ensure certainty in the scheme and to prevent a repeat of the practice of short­stay letting and the Tribunal will therefore make such an order.

Orders

1.The application succeeds.

2.The respondents shall not utilise their respective lots for short­stay accommodation since such a use is inconsistent with and unauthorised by By­law 16 of the strata scheme.

3.Order 2 shall not cease to have effect or force upon the expiration of the period of two years that next succeeds the making of this order.

4.These orders shall have effect as from 1 August 2015.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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DR B DE VILLIERS, MEMBER